The Colorado Court of Appeals issued its opinion in People v. Thomas on Thursday, February 26, 2015.

Self-Defense—Right to Testify—Prejudice.

Thomas had opposed self-defense, and throughout the trial he remained consistent that he wanted to testify to his actual innocence. His attorneys had told him that choosing self-defense was their prerogative, and they told him that once they advanced this defense in opening statement, his testifying to actual innocence would destroy the credibility of the defense. Thomas alleged that his trial counsel rendered ineffective assistance by pursuing a self-defense theory over his objection.

Thomas argued that trial counsel’s self-defense strategy usurped his constitutional right to testify because, if not foreclosed by this strategy, he would have testified that he had not shot the victim.Even assuming that counsel’s decision to proceed with self-defense constituted deficient performance, Thomas made no showing of prejudice. Therefore, his argument fails.

The Tenth Circuit Court of Appeals issued its opinion in United States v. Cruz on Monday, December 22, 2014.

Raul Cruz was convicted by a jury of knowingly and intentionally possessing methamphetamine with intent to distribute and sentenced to 63 months’ imprisonment. His conviction and sentence were affirmed on direct appeal. Cruz subsequently filed a motion to vacate, set aside, or correct his sentence, alleging his trial counsel was ineffective for failing to move to suppress evidence uncovered during the search of his residence pursuant to an unsigned search warrant. The district court denied relief on this assertion, and Cruz appealed.

The Tenth Circuit found, upon examination of the record, that the affidavit and warrant had been presented to a New Mexico district judge on March 26th, 2010. The judge signed the signature lines on the affidavit but neglected to sign the warrant at that time. Officers executed the warrant on March 29, 2010, and found methamphetamine, horse steroids, cash, and false identification. Officers found no evidence of drug use in the home or by Cruz. Cruz admitted to possession of the drugs but not intent to distribute. Approximately a month later, the judge signed the warrant, dated it March 26, 2010, and wrote “Nunc Pro Tunc on this April 23, 2010″ below the date line.

Cruz asserted that his counsel should have moved to suppress the evidence seized during the search of his residence, as well as his subsequent statements to police about the fruits of the search, because the unsigned warrant was not “issued” by a judge. Cruz claims that such motion would have been meritorious and would ultimately have led either to dismissal of the charges against him or his acquittal at trial. The Tenth Circuit disagreed, finding instead that nothing in the text of the Fourth Amendment conditions the validity of a warrant on its being signed. The First Circuit recently dealt with surprisingly similar facts and rejected the defendant’s argument, concluding that nothing in the Fourth Amendment required the judge who made the probable cause determination to also sign the warrant. The Tenth Circuit exhaustingly examined the meaning of the term “issue” under the Fourth Amendment, and found no reason to impose conditions on a validity of a warrant that were not set forth by the Fourth Amendment itself. The Tenth Circuit therefore concluded that there was no support for an inference that Cruz’s counsel’s motion to suppress would have been meritorious, and found no deficient performance of his counsel.

Romero was convicted of first-degree murder for shooting A.S. He was sentenced to life in prison without the possibility of parole. He filed a motion for post-conviction relief pursuant to Crim.P. 35(c), which was denied without a hearing.

On appeal, Romero contended that attorney F.G. ineffectively assisted him during his police interview when he failed to advise Romero of the consequences of submitting to police interrogation and a polygraph test. Romero’s Fifth Amendment right to counsel had not attached because the police interview was not custodial. Romero’s Sixth Amendment right to counsel had also not attached because Romero had not yet been charged. Accordingly, Romero’s ineffective assistance of counsel claim with regard to F.G.’s pre-indictment representation failed.

Romero contended that F.G. ineffectively assisted him during trial because F.G. visited Romero in jail and improperly advised him. Because F.G. did not represent Romero during any critical stages of the case, did not help him prepare his defense, and did not otherwise appear on his behalf, the constitutional guarantee of effective assistance did not apply. Accordingly, Romero’s ineffective assistance of counsel claim with regard to F.G.’s post-indictment advice also failed.

Romero further contended that D.J. and R.C. ineffectively assisted him when they (1) allowed him to be tried while incompetent, and (2) failed to object contemporaneously to alleged prosecutorial misconduct at trial. The record reflects that defense counsel raised the issue of Romero’s competency numerous times, and the court made adequate rulings on the record each time. In regard to Romero’s claims of prosecutorial misconduct, even assuming that the prosecutor’s statements were improper and that counsel’s failure to object constituted deficient performance, Romero failed to allege facts demonstrating prejudice. Therefore, the post-conviction court did not err in dismissing these claims without an evidentiary hearing. The order was affirmed.

The Colorado Supreme Court issued its opinion in West v. People on Tuesday, January 20, 2015.

Conflicts of Interest—Post-Conviction and Extraordinary Relief—Ineffective Assistance of Counsel.

In these appeals, defendants alleged that their trial counsel labored under conflicts of interest because counsel concurrently or successively represented trial witnesses against them. The court of appeals remanded both cases to the trial courts to determine whether, under Cuyler v. Sullivan, 446 U.S. 335 (1980), defendants’ attorneys labored under an “actual conflict.” Defendants separately petitioned for review of the court of appeals’ judgments, asking the court to clarify whether the Sullivan standard requires a defendant to demonstrate, in addition to a conflict of interest, that an “adverse effect” arose from the conflict.

In People v. Castro, 657 P.2d 932 (Colo. 1983), the Supreme Court held that an adverse effect was inherent in a “real and substantial” conflict of interest and thus a separate showing was unnecessary. In this consolidated opinion, the Court overruled Castro because the U.S. Supreme Court recently held that an actual conflict, under the Sullivan standard, requires a defendant to show both a conflict of interest and an adverse effect on his or her attorney’s performance.

The Court held that to show an adverse effect, a defendant must (1) identify a plausible alternative defense strategy or tactic that trial counsel could have pursued; (2) show that the alternative strategy or tactic was objectively reasonable under the facts known to counsel at the time of the strategic decision; and (3) establish that counsel’s failure to pursue the strategy or tactic was linked to the actual conflict. The Court therefore affirmed the court of appeals’ judgments in part and instructed the trial courts to consider whether, under this framework, defendants received ineffective assistance of counsel by virtue of their attorneys’ alleged conflicts and are therefore entitled to new trials.

Defendant, an undocumented noncitizen of the United States, completed a federal I–9 employment-eligibility verification form and began work for a company in Greeley (employer). On his verification form, he used a Social Security card and Missouri identification card, claiming to be a U.S. citizen named Marco Antonio Perez. During a routine audit, an agent from the Department of Homeland Security confirmed an outstanding Florida warrant for tax fraud against Perez and notified the Greeley police of this warrant. Believing that they were arresting Perez, the police arrested defendant. Defendant then admitted his real name to the police and the fact that he had purchased a fraudulent Social Security card and Missouri identification card for $150. He pleaded guilty to criminal impersonation.

On appeal, defendant contended that the post-conviction court erred in rejecting his three ineffective assistance of counsel claims. The Court of Appeals disagreed. First, a suppression motion under the Immigration Reform and Control Act of 1986 (IRCA), even if successful, would not have altered the verdict had defendant proceeded to trial. Further, defendant failed to show that he would not have pleaded guilty had counsel properly investigated and pursued a suppression motion under the IRCA. Second, the immigration consequences of defendant’s conviction were not succinct, clear, or explicit. As a result, plea counsel was only required to advise defendant that his pending criminal charges may have carried a risk of adverse immigration consequences, which counsel did. Third, because defendant’s eligibility for such relief was unclear, plea counsel properly advised him that his conviction might carry a risk of adverse immigration consequences. Finally, the post-conviction court did not err in rejecting defendant’s claim of ineffective assistance based on counsel’s not obtaining a K’iche interpreter for him. Defendant spoke sufficient Spanish to engage in meaningful communications with his plea counsel (with the aid of Spanish interpreters) and to navigate the judicial system. The order was affirmed.

The Tenth Circuit Court of Appeals issued its opinion in Jones v. Trammell on Friday, December 5, 2014.

On July 28, 1999, Paul Howell was fatally shot in his Suburban in his parents’ driveway in Oklahoma City. Two days later, police found Howell’s Suburban, canvassed the neighborhood where it was found, spoke to various people, and eventually investigated Julius Jones as the suspect in the killing and robbery. Police also investigated Christopher Jordan as the co-conspirator. Police obtained a warrant to search Jones’ parents’ house, where they found the gun used to shoot Howell wrapped in the bandanna worn during the robbery hidden in a hole in the ceiling above Jones’ room. Police found the weapon’s magazine hidden inside the door chime housing.

Jones and Jordan were charged conjointly with conspiracy to commit a felony and with the murder of Howell. Jones was also charged with possession of a firearm by a convicted felon. Jordan pleaded guilty and agreed to testify against Jones as part of his plea agreement. After a jury trial, Jones was convicted on all three charges. He was sentenced to death on the murder charge, 25 years’ imprisonment on the conspiracy charge, and 15 years’ imprisonment on the weapon charge, to run concurrently.

Jones filed a direct appeal with the Oklahoma Court of Criminal Appeals (OCCA) asserting 19 propositions of error, including an ineffective assistance of counsel claim based on his trial counsel’s failure to call Emmanuel Littlejohn as a witness. Littlejohn was Jordan’s cellmate, to whom Jordan had confided that Jones was not involved in the murder and robbery and that Jordan had committed the crimes. Jones’s trial counsel, David McKenzie, in his affidavit, stated he had personally interviewed Littlejohn and spoken to Littlejohn’s attorneys, and had decided not to call him as a witness due to concerns about his credibility. The OCCA affirmed Jones’s convictions and sentences, and expressly rejected his ineffective assistance claim. Jones filed a petition for rehearing and motion to recall the mandate. The OCCA granted the rehearing petition but ultimately concluded there was no merit to Jones’s issues on rehearing and denied the mandate motion. The U.S. Supreme Court denied certiorari.

Jones filed an original application for post-conviction relief with the OCCA while his direct appeal was still pending. Proposition One alleged various instances of ineffective assistance of counsel, including allegations that another inmate also overheard Jordan claiming responsibility for the robbery and murder and alleging ineffective assistance for his counsel’s failure to discover this witness. The OCCA denied Jones’s petition for post-conviction relief and expressly rejected Jones’s argument about the other inmate. Jones then filed a petition for federal habeas relief, again asserting an ineffective assistance of counsel claim based on his counsel’s failure to explore the other inmate’s corroborating testimony. The district court denied his petition and refused to issue a COA. The Tenth Circuit subsequently issued a COA on the issue of whether trial counsel provided ineffective assistance by failing to investigate Littlejohn’s claim.

The Tenth Circuit evaluated Jones’s ineffective assistance claim based on the standard set forth in the U.S. Supreme Court decision in Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, the defendant must show that (1) counsel committed serious errors such that the legal representation fell below an objective standard of reasonableness [the performance prong], and (2) there is a reasonable probability that but for counsel’s errors the result of the proceeding would have been different [the prejudice prong]. Jones conceded that the OCCA’s resolution of the ineffective assistance claim he raised on direct appeal “was likely reasonable.” Jones instead asserted that McKenzie’s failure to seek corroboration of Littlejohn’s proposed testimony was error.

The Tenth Circuit rejected Jones’s arguments, finding them based on the erroneous premise that the OCCA’s resolution rested on Strickland‘s performance prong. The Tenth Circuit instead discerned that the OCCA examined the proffered testimony and decided it would not alter the outcome of the proceedings, therefore implicating the prejudice prong. This effectively disposed of Jones’s arguments on appeal, and the Tenth Circuit affirmed the district court’s denial of Jones’s habeas petition.

Samuel Rodriguez pleaded guilty to the distribution of five grams or more of methamphetamine, and the district court sentenced him. The district court applied a career offender sentence enhancement based on Rodriguez’s two prior felony convictions involving crimes of violence or controlled substances. One of Rodriguez’s prior convictions was for simple assault under the Texas Penal Code. The parties disagree on whether the assault conviction constitutes a crime of violence. In an earlier appeal, Rodriguez’s attorney argued unsuccessfully that the conviction should not be considered a crime of violence. Rodriguez then sought collateral relief on a theory that his attorney had mishandled the issue. The district court recharacterized the request as a motion to vacate the sentence and denied it. Rodriguez then sought a Certificate of Appealability (COA), along with leave to amend his motion and a request to file in forma pauperis. The Tenth Circuit denied the COA and mooted the related requests.

The Tenth Circuit first noted that its prior ruling was the law of the case, and even if the current panel disagreed with the finding of the prior panel, it could not overturn that decision. Nevertheless, analyzing Rodriguez’s claim about the requisite mental state underlying his Texas assault offense, the Tenth Circuit found that the issue had been litigated in the prior ruling. The Tenth Circuit found that Rodriguez’s prior counsel advocated well for him, raising the claim that he did not have the requisite mental state, citing case law, and otherwise appropriately advocating, and declined to characterize Rodriguez’s appeal as anything other than an attempt to relitigate an already-decided issue.

The Tenth Circuit denied Rodriguez’s request for a COA and found moot his related requests to amend his motion and file in forma pauperis.

The Colorado Court of Appeals issued its opinion in People v. Newmiller on Thursday, July 3, 2014.

Ineffective Assistance of Counsel.

Defendant, his brother, and their friends went to a strip club in Colorado Springs to celebrate defendant’s birthday. When the group was leaving the club, they had an altercation with another group (victim’s group) regarding a comment someone in the victim’s group had made to a dancer. The two groups confronted each other soon after, and the victim was stabbed in the heart. He later died from his injuries.

On appeal, defendant argued that his trial attorneys were ineffective. To establish prejudice, a defendant must show a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Here, counsel’s failure to request a lesser included offense instruction or consult with defendant on the matter did not constitute ineffective assistance, because it was an adequately informed strategic choice by defendant’s attorneys. Additionally, contrary to defendant’s assertions, counsel’s failure to request an instruction on the lesser non-included offense of accessory to crime did not constitute ineffective assistance, because there was no factual basis for this requested instruction; it could be considered a strategic choice by defendant’s attorneys. Further, the level of investigation by defendant’s counsel and the subsequent decision not to retain a medical expert clearly met the standard of reasonably competent assistance. Also, defendant has not shown that, in light of all the circumstances, counsel’s failure to call a crime scene reconstruction expert was “outside the wide range of professionally competent assistance.” Finally, one attorney discussed the case with defendant on multiple occasions and this attorney’s advice to defendant regarding his right to testify was within the range of competence demanded of attorneys in criminal cases. Therefore, defendant failed to prove that his attorneys were ineffective. The district court’s order denying defendant’s Crim.P. 35(c) motion for post-conviction relief was affirmed.

The Tenth Circuit Court of Appeals issued its opinion in Bonney v. Wilson on Friday, June 13, 2014.

Defendant Steven Bonney was accused of sexual assault by five members of his extended family – four girls and one boy – when Bonney was a teenager and the victims were between the ages of six and eight years old. The State of Wyoming charged him with four counts of second degree sexual assault, two of which involved female victim T.N., and one count of third degree sexual assault, which, along with the other two second-degree counts, involved female victim V.B. No charges were filed as to the other three victims. Pursuant to a plea agreement, Bonney pled guilty to two counts of second degree sexual assault – one involving each of the charged victims. As part of the plea agreement, the State agreed to dismiss the remaining charges, forego filing similar charges regarding P.M. (the lone male victim), and recommend that Colorado authorities not charge Bonney with crimes committed in that state against victim K.B. At sentencing, a fifth victim, K.S., filed a victim impact statement that discussed how the abuse had divided the family. Charges were never filed regarding K.S.

After the plea agreement entered but before the time for withdrawal of the guilty plea had passed, Bonney’s defense counsel received a letter from K.S., which said that she had not had sexual contact with Bonney but he had “put his fingers in places that no cousin should have.” K.S. also said that T.N. had fabricated her story and encouraged K.S. to embellish her story. Defense counsel never informed Bonney of the letter and the time passed for withdrawing the guilty plea. About a month later, Bonney retained new counsel and filed a state petition for post-conviction relief on ineffective assistance of counsel grounds. The sentencing court granted Bonney an evidentiary hearing on that claim (and two others not at issue in the Tenth Circuit), and admitted K.S.’s affidavit into evidence. K.S. also testified, giving specific information regarding the inappropriate contact Bonney had had with her and stating that T.N. had never told her she was untruthful. Defense counsel testified that he did not believe K.S.’s letter could do anything but harm his client, since it established another charge of sexual misconduct with a minor and the defense would have to acknowledge K.S.’s description of the defendant’s inappropriate touching in order to use her testimony against T.N.

The Wyoming court issued a written order denying Bonney’s claims, noting that to show ineffective assistance, Bonney would have had to show that his counsel’s performance fell below an objective standard of reasonableness and prejudiced his defense. Additionally, the court stated that “Petitioner must do more than argue that he would have insisted on going to trial—he must demonstrate that a reasonable person would have done so.” The Wyoming court concluded that although defense counsel should have apprised his client of the letter, there was no prejudice, because a reasonable person in defendant’s position would still have filed the guilty plea. Bonney timely appealed the Wyoming court’s decision to the federal district court, which granted Bonney a conditional writ of certiorari on the state court record and instructed the Wyoming court to permit Bonney to directly appeal his convictions.

On appeal, the Tenth Circuit reversed the judgment of the federal district court, opining that the district court jumped beyond the state court’s analysis of whether it would have permitted Bonney to withdraw his guilty plea and instead focused on Bonney’s right to appeal his convictions. Applying U.S. Supreme Court precedent, the Tenth Circuit ruled that a state court’s determination that a claim lacks merit precludes federal habeas relief so long as a fairminded jurist might agree that such determination was not inconsistent with Supreme Court precedent. Because Bonney could not have used his best defense if he had admitted the K.S. letter — that he was completely innocent of all charges and they were simply fabrications of the victims — he would have been significantly prejudiced by withdrawing his guilty plea. Additionally, the state would have charged him with more counts regarding victim P.M. if not for the plea agreement, thus prejudicing defendant further. The Tenth Circuit determined that a rational defendant in Bonney’s position would not have withdrawn his guilty plea after K.S.’s partial recantation, and reversed the judgment of the federal district court.

The Colorado Court of Appeals issued its opinion in People v. Lanari on Thursday, June 5, 2014.

Crim P.35(c)—Doctrine of Laches—Prejudice.

In 1987, a jury convicted Lanari of first-degree murder, attempted first-degree murder, and four crime of violence sentencing enhancers. On November 2, 2010, Lanari filed a pro se Crim.P. 35(c) motion, alleging that trial and appellate counsel were ineffective for various reasons. The People moved to dismiss the motion, arguing that it was barred by the doctrine of laches. After a hearing, the district court agreed and dismissed the Crim.P. 35(c) motion.

On appeal, Lanari argued in his opening brief that his Crim.P. 35(c) motion was not barred by the doctrine of laches. There is no statutory time limit to file a post-conviction motion if a defendant has been convicted of a class 1 felony. However, the doctrine of laches is still available to bar such motions based on prejudice to the prosecution. Here, Lanari conceded that he knew about the facts underlying his ineffective assistance of trial counsel claims either before or by the conclusion of his trial in 1987. Additionally, he knew about the facts that formed the basis of his ineffective assistance of appellate counsel claims by the conclusion of his appeal in 1997. The People were not required to show that they detrimentally relied on Lanari’s failure to file a post-conviction motion within a reasonable time. Because Lanari filed his post-trial motion almost twenty-four years after his trial in January 1987, the district court did not abuse its discretion in finding that the People were prejudiced by such delay. The judgment was affirmed.

The Tenth Circuit Court of Appeals issued its opinion in Frost v. Pryor on Friday, April 25, 2014.

Frost was convicted in Kansas state court of aggravated indecent liberties with a child. During the trial, the child’s mother testified about certain medical treatment she sought for the child. Frost instructed his attorney to obtain medical records to rebut the mother’s testimony, but the attorney did not do so. Frost also wanted his attorney to obtain witness testimony that the mother threatened to send him back to prison, which the attorney did not do. Frost moved for a new trial based on ineffective assistance of counsel, but the state court denied his motion and he was sentenced to 204 months in prison. Frost appealed his conviction to the Kansas Court of Appeals based on ineffective assistance of counsel. The Kansas court upheld his conviction, determining that although the trial counsel provided deficient performance by failing to request the child’s medical records, the counsel’s performance did not prejudice Frost. The Kansas Supreme Court declined review.

Frost then sought a writ of habeas corpus due to ineffective assistance of trial counsel regarding the failure to obtain the medical records, and on several other grounds as well. The federal court denied relief on the first ineffective assistance claim relating to the child’s medical records because of the deference owed to state court decisions on the merits under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). The court dismissed Frost’s remaining claims as procedurally barred. However, it issued a certificate of appealability on the sole issue of whether Frost’s trial counsel was unconstitutionally ineffective regarding the failure to obtain the medical records.

Frost appealed to the Tenth Circuit, arguing that the district court incorrectly denied habeas relief based on the ineffective assistance of the trial counsel, and also arguing for relief on his procedurally barred claims. After an extensive analysis of the lower court rulings and AEDPA’s mandates, the Tenth Circuit determined that the severe constraints of AEDPA review precluded reversal and affirmed.

The victim was shot and killed outside an auto parts store. According to eyewitness accounts, after the shooting, the shooter ran from the store to a car, and the car drove away. One witness viewed a photo lineup and identified defendant Kevin Washington as the person who ran from the store. A jury subsequently convicted Washington of first-degree murder. Thereafter, Washington filed a pro se Crim.P. 35(c) motion alleging ineffective assistance of trial counsel. The post-conviction court rejected Washington’s claims.

On appeal, Washington contended that the post-conviction court reversibly erred in applying the incorrect burden of proof on the prejudice prong of his ineffective assistance claim. The Court of Appeals concluded that the post-conviction court applied the correct burden of proof. Specifically, the Court stated that for Washington to prove prejudice under the 1984 U.S. Supreme Court ruling in Strickland v. Washington, 466 U.S. 668, 8 687-94, he must show that there is a reasonable probability that but for counsel’s unprofessional errors, the result of the proceeding would have been different. The Court further found that Washington’s claims of prejudice were pure speculation. Accordingly, the court did not err.

Washington also contended that contrary to the post-conviction court’s findings, the evidence at the post-conviction hearing conclusively established that his trial counsel was ineffective. The evidence, however, supported the post-conviction court’s finding that Washington failed to show how trial counsel’s choice not to introduce evidence or present testimony regarding this case, or not to investigate and introduce alibi evidence concerning a 1995 incident, was outside the range of professionally competent assistance. Further, Washington failed to demonstrate any prejudice arising from counsel’s alleged failure to object to the prior acts evidence when it was offered at trial. Therefore, the post-conviction court did not err in finding that trial counsel was not ineffective. The trial court’s judgment was affirmed.

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On Wednesday, March 14, 2018, the Colorado State Judicial Branch announced the governor’s appointment of Cynthia J. Jones to the Clear Creek County Court in the Fifth Judicial District. Jones will fill a vacancy created by the appointment of Hon. Rachel Olguin-Fresquez to the Eagle County Court, effective February 1, 2018.